Zadroga 9/11 Compensation Claims Info

If Congressional leaders in Washington, D.C. don't resolve their budget differences by this Friday, the first responders, survivors, construction workers, municipal workers and volunteers covered by the 9/11 Zadroga Act could lose $27 million.

The original funding for the Zadroga 9/11 Act, including the World Trade Center Health Program and the 9/11 Victim Compensation Fund is already woefully inadequate without the additional insult of the sequestration cuts.  The sad part is that this was completely predictable - and avoidable -  if Congress would simply do their jobs. 

Let's hope that all the partisan gamesmanship on both sides of the aisle in Washington is put aside by Friday so that the heroes and survivors of 9/11 are not harmed once again.  

Current members of the World Trade Center Health Program  should have recently received a letter asking them to contact their Health Program Case Manager or their Clinical Center of Excellence (CCE) to begin the process of certifying their cancer(s) for treatment under the WTC Health Program. 

See an example of the WTC Health Program Long Island Clinical Center of Excellence at Stony Brook Cancer Certification 10/29/2012 letter here.  An example of the more generic, but essentially the same, cancer certification letter sent to those residing outside New York by the national program can be found here.  Also attached is a helpful list of WTC Cancer Certification Frequently Asked Questions (FAQ's). 

The message from the WTC Health Program is clear:  If you were a 9/11 first responder, worker or resident in the "crash site" area" and have any of the cancers now covered under the Zadroga Act, you should contact either your local Clinical Center of Excellence or the National Program now to begin the process of certifying your particular cancer for free treatment under the Zadroga 9/11 Act.  

If you are part of (or would like to be part of) the Long Island WTC Health program, you should call 631-855-1200 and ask about the expanded cancer certification process.  If you live out of state, you should contact the national NIOSH WTC Health Program at 1-888-982-4748.

We will continue to update you on all 9/11 related cancer certification news as it becomes available.  More WTC 9/11 Cancer resource information can be found here.

 

 

Now that the World Trade Center Health Program Scientific and Technical Advisory Committee has recommended that the 9/11 Victim Compensation Fund  should be expanded to include cancer, the next major question is which particular cancers should be covered? 

Our office has long advocated to Dr. John Howard, Director of NIOSH, for inclusion of cancer coverage under the the re-opened 9/11 Victim Compensation Fund as part of the Zadroga Act.   We currently represent over 40 clients with different forms of cancer which their doctors believe are related to their exposure to toxins at Ground Zero or other impacted areas such as the morgue or Fresh Kill landfill.

So which types of cancer should be covered under the WTC Health Program and the 9/11 Victim Compensation Fund?  While we believe that every individual exposed to WTC toxins should be allowed to make their own medical case for inclusion of their particular cancer.  However, practically, we know that the World Trade Health Center Program will likely only cover certain types of cancer. 

At a minimum, Turley, Hansen and Partners believe  that the following types of cancer should be included in the World Trade Center Health Program and that claimants with such cancers should be allowed to apply for compensation through the 9/11 Victim Compensation Fund:

• Blood Cancers, including Multiple Myeloma, Leukemia and Non-Hodgkins Lymphoma
• Head, Neck and Throat cancer
• Oral cancer, including Tongue Cancer and Nasopharyngeal Cancer
• Thyroid Cancer
• Esophageal Cancer (Cancer of the esophagus)
• Lung Cancer, including Mesothelioma
• Kidney Cancer
• Bladder Cancer
• Prostate Cancer
• Colon Cancer
• Melanoma (skin) Cancer 

 

The National Academy of Continuing Legal Education recently invited me to lecture my colleagues on the newly proposed Zadroga Act 9/11 Victim Compensation Fund regulations. The program was entitled "The Legal Aftermath of Tragedy: Review and Developments in the James Zadroga 9/11 Health and Compensation Act of 2010". Lawyers can sign up to see the Zadroga Act video and obtain CLE credits here.

This follows my previous video lecture for Lawline regarding Zadroga 9/11 Act claims.  I am sure that I will be writing and lecturing about the Final Zadroga Act Rules  when they come out. I am predicting that theFinal Zadroga Act Rules will not be released until after the tenth anniversary of September 11th so as to not cause any controversy prior to that solemn event.  This will allow the 9 11 Victim Compensation Fund to hopefully reopen in October for new claims as VCF Special Master Sheila Birnbaum has previously stated.

Stay tuned for further information. Also, stay safe for those of you who have Hurricane Irene coming your way.

The US Justice Department and Zadroga Act VCF Special Master, Sheila Birnbaum, just released a new set of clear and concise Zadroga 9/11 Act "Frequently Asked Questions" (FAQ's) on the Justice Department Zadroga website. They are so good and comprehensive, we have decided to re-publish them below in their entirety. Click here for a down-loadable and printable version of the Zadroga 9/11 Act Justice Department FAQ's. We hope they are helpful.

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What is the new VCF?

On January 2, 2011, President Obama signed the Zadroga Act, which reopens the September 11th Victim Compensation Fundof 2001.  The Zadroga Act expanded the scope of the original VCF to enable more individuals who suffered physical injury or death as a result of the September 11th attacks to obtain compensation from the program.  Like the initial VCF, the Act provides that an individual who elects compensation from the VCF waives his or her rights to pursue litigation to seek damages for the physical injury or death resulting from the September 11th attacks. 

The new VCF will be administered  by Special Master Sheila Birnbaum, who has been appointed by the Attorney General of the United States. 

The VCF will accept claims for five years  and will complete the payment of claims during 2016-17.  It is important that you understand the filing rules, because you must submit your claim within two years of the date you know of the physical injury or death resulting  from the attacks (or, if you already know of the physical injury or death in question, within two years of the date that the regulations are finally updated). 

Congress has appropriated a fixed sum of money for the VCF.  This fixed sum is $2.775 billion.  Congress has also determined that $875 million of that total amount may be paid out in the first five years of the VCF program.  The remainder may be paid in the sixth year. 

The limitations on funding for the VCF means that in the first five years of the program, claimants will receive only a portion of the compensation allowed under the rules of the VCF.  Depending on the number and type of claims, and in order to ensure that all eligible claimants receive an award, the Zadroga Act’s cap on funding means that it is possible that claimants’ awards will be pro-rated.

Who will be eligible for the new VCF?

The Zadroga Act provides that individuals present at the September 11th crash sites at the time of the crashes or between September 11, 2001 and May 30, 2002, and who suffered physical harm as a direct result of the crashes or debris removal, and the personal representatives of those who were present at the crash sites at the time of the crashes or in the immediate aftermath and who died as a direct result of the crashes, are eligible. 

The VCF’s draft regulations, which you may comment on at www.regulations.gov, define eligible physical harm to mean a physical injury to the body that was treated by a medical professional within a reasonable time from the date of discovering the harm.  In addition, the physical injury must be verified by or at the direction of the medical professional who provided contemporaneous medical care.

In order to be covered by the VCF, your physical condition must have been a result of September 11th.  To help make these determinations, the Special Master will identify conditions that are presumptively covered by the VCF.  The draft regulations provide that initially, the presumptively covered conditions will consist of physical injuries that are determined to be World Trade Center (WTC)-related health conditions by the WTC Health Program that is operated by the National Institute for Occupational Safety and Health and provides medical treatment and monitoring for WTC-related health conditions. 

Initially, those  presumptively covered conditions include the following: 

Aerodigestive Disorders

• Interstitial lung disease
• Chronic Respiratory Disorder – fumes / vapors
• Asthma
• Reactive Airways Dysfunction Syndrome (RADS)
• WTC-exacerbated Chronic Obstructive Pulmonary Disease (COPD)
• Chronic cough syndrome
• Upper airway hyperreactivity
• Chronic rhinosinusitis
• Chronic nasopharyngitis
• Chronic laryngitis
• Gastro-Esophageal Reflux Disorder (GERD)
• Sleep apnea exacerbated by or related to the above conditions. 

Musculoskeletal Disorders

• Low back pain
• Carpal tunnel syndrome (CTS)
• Certain other musculoskeletal disorders for WTC responders who received treatment for a WTC-related musculoskeletal disorder that meets certain criteria.

Claimants who have a presumptively covered condition that was caused as a result of September 11th and are otherwise eligible may receive compensation from the VCF for certain losses.

When will the VCF open for claims?

The VCF is currently taking public comment on the draft rules that it published in June, meeting with those affected by the program, designing claims forms, and building the infrastructure that is necessary for a claims process.  After all of the comments on the VCF’s draft rules have been received, and the Special Master has considered how those comments should affect the program, the VCF will publish its final rules this Fall and begin receiving claims shortly thereafter.

Does it cost anything to file a claim?

No.

How long will claimants have to submit their claims?

In general, claimants will have two years to submit a claim.  The Zadroga Act provides that a person who knows of physical harm resulting from the September 11th attacks as of the date the regulations are published must file within two years of  the date of the regulations.  A person who subsequently learns of physical harm must file the claim within two years of the date you learn or should reasonably have known that you suffered a physical injury as a result of the attacks.

The Zadroga Act authorizes the VCF to receive claims for five years after it opens in 2011.  Final payments will be made in 2016-17. 

How are VCF awards and administrative costs funded?

The VCF is a government program, funded by taxpayers.  Congress appropriated $2.775 billion for the VCF, to cover both awards made to claimants and administrative costs.  Because every dollar spent on administrative costs is a dollar that cannot be paid to claimants, the VCF must provide a streamlined, efficient administrative process.

How long will the World Trade Center Health Program last?

Congress has funded the health program for at least the next five years, through 2016. 

For further questions about the World Trade Center Health Program, please contact them by phone at 1-888-WTC-HP4U (1-888-982-4748), or on the web at http://www.cdc.gov/niosh/wtc.

Eligibility

What are the eligibility requirements for participation in the new VCF?  Are the eligibility requirements the same as during the VCF’s first iteration, or have they changed?

The Zadroga Act changed the eligibility requirements to authorize claims from persons who were present at the crash sites between September 11, 2001 and May 30, 2002.  In addition, the Act changed the eligibility criteria to include claims from persons who suffered physical harm or death as a result of the crashes or as a result of debris

The Zadroga Act and the proposed rules state that to be eligible, a claimant must have been present at a “9/11 crash site” on September 11th or during its immediate aftermath.  What are the crash sites?

Under the Zadroga Act, the crash sites include the World Trade Center site, the Pentagon site, the Shanksville site, debris removal routes such as barges and Fresh Kills, and any area that is sufficiently close to the crashes that the Special Master determines to have had a demonstrable risk of physical harm.

Although the rules for the VCF are not yet final, the VCF’s draft rules, which are available at www.justice.gov/vcf, propose that this area should include the area in Manhattan south of the line that runs along Reade Street from the Hudson River to the intersection of Reade Street and Centre Street, south on Centre Street to the Brooklyn Bridge, and along the Brooklyn Bride. 

(If you would like to submit a comment on the draft rules, you may find instructions on how to do so at www.justice.gov/vcf.)

I was not present at a 9/11 crash site, as those areas are defined in the proposed rules, but I believe my health condition was caused by September 11th.  Will I be eligible for the fund?

You may still be eligible.  Although the rules for the VCF are not yet final, the VCF’s draft rules, which are available at www.justice.gov/vcf, propose that the Special Master may find that there were other areas in which there was a demonstrable risk of physical harm resulting from the impact of the aircraft or any subsequent fire, explosions, or building collapses. 

In addition, please note that the proposed rules are not final. You may submit comments on this or any other provisions of the proposed rule at www.regulations.gov.  You may find instructions on how to do so at www.justice.gov/vcf.

If I applied to the VCF during its first iteration and my claim was denied, can I apply again now?

Although the rules for the VCF are not yet final, the VCF’s draft rules, which are available at www.justice.gov/vcf, propose that individuals who submitted claims in the VCF’s first iteration may amend and re submit their claims in certain circumstances:

• The individual suffered a new injury that is eligible under the new VCF;
• The individual’s prior eligible condition has substantially worsened, resulting in damages or loss that was not previously compensated;
• The individual was not previously eligible for the VCF, but is now eligible as a result of changes contained in the Zadroga Act;
• The individual’s previous claim was based on a condition that was not previously covered by the VCF, but that is now covered.

(If you would like to submit a comment on the draft rules, you may find instructions on how to do so at www.justice.gov/vcf.)

If I applied to the VCF during its first iteration and my claim was granted, can I apply again now?

Although the rules for the VCF are not yet final, the VCF’s draft rules, which are available at www.justice.gov/vcf, propose that individuals who submitted claims in the VCF’s first iteration may amend their claims in certain circumstances:

• The individual suffered a new eligible  injury;
• The individual’s eligible condition has substantially worsened, resulting in damages or loss that was not previously compensated;
• The individual was not previously eligible for the VCF, but is now eligible as a result of changes contained in the Zadroga Act;
• The individual’s previous claim was based on a condition that was not previously covered by the VCF, but that is now covered.

(If you would like to submit a comment on the draft rules, you may find instructions on how to do so at www.justice.gov/vcf.)

If I did not experience any physical injury or death as a result of September 11th, but I experienced emotional or mental harms as a result of the events, am I eligible for the VCF?

No.  When Congress first created the VCF in 2001, it directed that only claimants who have a “physical injury” can be eligible for the VCF, and Special Master Ken Feinberg interpreted that phrase to mean “a physical injury to the body,” thus excluding claims for psychological conditions. 

In the Zadroga Act, Congress did not change how the VCF treats psychological conditions.  As a result, the VCF is not able to accept claims solely for psychological conditions.

The World Trade Center (WTC) Health Program does provide options for treatment of psychological conditions.  For information about whether you may be eligible for treatment for emotional or mental harms by the WTC Health Program, you may contact them by phone at 1-888-WTCHP4U (888-982-4748), or on the web at http://www.cdc.gov/niosh/wtc.

Do I have to live in New York to participate in the VCF?

No.  You do not have to live in New York to participate in the VCF. 

If I do not live in New York, how can I participate in the VCF?

Claimants will be able to submit information to the VCF through the mail or over the internet.  If a claimant would like a hearing to appeal his or her award, the VCF will make every effort to accommodate long-distance hearings through video-conference or, where necessary telephone conferences.

If I was not a uniformed responder, am I eligible for the VCF?

You do not have to be a uniformed responder to be eligible. Under the Zadroga Act, to receive a payment from the VCF, an individual must have been present at a September 11th crash site between the time of the crashes and May 30, 2002, and have suffered physical harm or death as a result of the September 11th air crashes or debris removal.

Are foreign nationals eligible for the VCF?

Yes.  The Zadroga Act permits both U.S. citizens and foreign nationals who satisfy the VCF’s eligibility criteria to participate in the VCF.

The Process / Determination of Awards

What kind of medical exam will be required for the VCF?

The rules for the VCF are not yet final.  In some cases, the VCF may be able to accept medical examinations provided under the World Trade Center Health Program.  It is possible that the type of medical exam required will vary depending on the claimant’s particular medical condition.  The VCF will publish more detailed guidelines in the future.

If I have not yet suffered economic harms, but fear that I may suffer economic harms in the future, should I submit a claim to the VCF now?

If you already know that you suffered physical harm as a result of September 11th, the Zadroga Act requires you to file with the VCF within two years of the date it opens.  This requirement applies whether or not you have suffered economic harm as a result of your condition. 

Although the rules for the VCF are not yet final, we expect that the VCF will consider future expected loss based on the claimant’s condition consistent with the methodology applied in the first VCF.    Similarly, individuals whose conditions substantially worsen after they submit their claim may be able to amend their claims.  The VCF’s draft rules, which are available at www.justice.gov/vcf , contemplate that an individual whose condition has substantially worsened, resulting in damages or loss that was not previously compensated, may amend his or her claim.  (If you would like to submit a comment on the draft rules, you may you may find instructions on how to do so atwww.justice.gov/vcf.)

If I have not yet suffered economic harms, but my condition is expected to worsen, am I eligible for the VCF?

If you already know that you suffered physical harm as a result of the September 11th attacks or subsequent debris removal, the Zadroga Act requires you to file with the VCF within two years of the date it opens.  This requirement applies whether or not you have suffered economic harm as a result of your condition. 

Although the rules for the VCF are not yet final, we expect that the VCF will consider future expected loss based on the claimant’s condition consistent with the methodology applied I the first VCF.  Similarly, individuals whose conditions substantially worsen after they submit their claim may be able to amend their claims.  The VCF’s draft rules, which are available at www.justice.gov/vcf, contemplate that an individual whose condition has substantially worsened, resulting in damages or loss that was not previously compensated, may amend his or her claim.  (If you would like to submit a comment on the draft rules, you may you may find instructions on how to do so at www.justice.gov/vcf.)

If I am found eligible for the VCF, what treatments are covered?

The treatments that are covered for a particular claimant will depend on the nature and severity of the claimant’s condition.

 

Attorney-Client Issues

Do I need an attorney to participate in the VCF?

No, you are not required to have an attorney.  You are free to consult with attorneys and you should make your own decision as to whether you wish to engage an attorney.  Some attorneys have indicated a willingness to provide some assistance on a pro bono basis. 

If I choose to use an attorney, how will the attorney be paid?

The VCF will not reimburse claimants for fees charged by their attorneys.  Such fees must be paid by the claimant.  The Zadroga Act also provides a limitation on how much an attorney may charge in connection with the VCF.  Under the Zadroga Act, attorneys may not charge any claimant more than 10% of the payment the claimant receives as a VCF award. 

Attorneys who also charged their client a fee in connection with certain other September 11th-related litigation and settlement may only charge that client for representation before the VCF if the attorney’s total charge for both representations adds to 10% of the client’s total award in the other September 11th-related litigation.

If I was a plaintiff in another September 11th lawsuit, and my attorney signed a release before the bill was enacted and I opt in to that settlement, am I eligible for the VCF?

The rules for the VCF are not yet final.  The Zadroga Act states that if an individual tendered a release after the Zadroga Act was enacted on January 2, 2011, the individual is not eligible for the VCF.  The VCF will address the question of eligibility on a case-by-case basis.   If your attorney had authority to sign a release on your behalf and that release was signed and submitted to the defendant consistent with the terms of the settlement agreement between the claimant and the defendant prior to January 2, 2011, then the release will not bar the VCF claim. 

Where can I find out information about the settlements achieved in New York courts? 

The VCF cannot provide information about private settlements.  The VCF is a government program, established by Congress, and is separate from the lawsuits between individuals and the Port Authority, the Captive Insurer, and others.  Individuals with questions about the settlements should contact their lawyers.

Will settlements in civil suits regarding injuries related to September 11th affect my award in the VCF?

Yes.  The Act provides that the amount of the award shall be reduced by the amount of collateral source compensation that the claimant has received or is entitled to receive as a result of the crashes.  Therefore, settlement payments from law suits will be deducted from any award.

Legal Issues

Is my VCF award taxable?

The awards are not subject to Federal income tax.  In Revenue Ruling 2003-115, the Internal Revenue Service determined that periodic payments made to a claimant of the VCF pursuant to certain agreements are excluded from the gross income of the claimant.  Similarly, any payments to an estate or secondary beneficiary pursuant to such agreements are excluded from the gross income of the successor beneficiary.

Can my VCF award be seized in a bankruptcy proceeding?

How an award is handled in bankruptcy will depend on the facts and circumstances of each individual’s situation.  An attorney may be able to provide more information based on each individual’s particular case.

If I am eligible for the VCF, am I also eligible for veterans benefits?

The VCF is open to certain individuals who suffered personal injuries or death as a result of September 11th, regardless of whether they qualify as veterans.  Individuals with questions about their eligibility for veterans benefits should contact the Veterans Administration.  The Zadroga Act requires the Special Master to apply certain offsets to reduce the amount of compensation by the amount of collateral source compensation that the claimant has received or is entitled to receive as a result of the terrorist related aircraft crashes of September 11th.  Whether veterans benefits will be offset (so that the award is reduced) will depend on the specific benefit (i.e., what the benefit is for and whether it is subject to termination.)

Covered Conditions

General

If I received payment in the VCF’s first iteration, and I am suffering from a new condition that was not known or diagnosed at that time, am I eligible to submit a claim to the VCF now? 

Although the rules for the VCF are not yet final, the VCF’s draft rules, which are available at www.justice.gov/vcf, contemplate that an individual who has suffered a new eligible injury, or whose condition has substantially worsened, resulting in damages or loss that was not previously compensated, may amend his or her claim.  If you would like to submit a comment on the draft rules, you may find instructions on how to do so at www.justice.gov/vcf.

How will the VCF determine if a condition was a result of September 11th? 

The rules for the VCF are not yet final.  The VCF anticipates applying guidelines consistent with those adopted by the World Trade Center (WTC) Health Program.  The WTC Health Program relies on the best available science to determine whether a particular condition is related to September 11th and provides a protocol for doctors to determine whether a particular individual’s condition is a WTC-related health condition.

If I have a condition that was a result of September 11th but is not a common condition, am I eligible for the VCF? 

Yes.  Individuals who suffered injuries as a result of September 11th and who meet the other eligibility requirements may submit a claim, even if their condition is not common across the population. 

Although the rules for the VCF are not yet final, the VCF’s draft rules, which are available at www.justice.gov/vcf, propose that the VCF will post a list of conditions that have been determined to be related to September 11th.  Individuals with other conditions may also be eligible in extraordinary circumstances.  If you would like to submit a comment on the draft rules, you may find instructions on how to do so at www.justice.gov/vcf.

If I have suffered a physical injury as a result of September 11th but am still able to work, am I eligible for the VCF?

Yes.  Individuals who are still able to work may receive compensation for other economic losses they may have suffered, such as medical expenses or for non-economic losses.

I do not see my injury on the list of eligible injuries in the draft regulations.  How will I know if my injury is covered or might be covered in the future? 

In determining which conditions should be covered by the VCF, we intend to work closely with the World Trade Center (WTC) Health Program, which relies on the best available science to determine whether a particular condition is related to September 11th, and provides a protocol for doctors to determine whether a particular individual’s condition is a WTC-related health condition. 

The VCF’s draft rules provide that the VCF will consider modifications to the list of presumptively covered conditions based on the determinations of the WTC Health Program.  The VCF will examine the science to determine whether additional conditions (including specific types of cancer) can be covered.  The VCF’s draft rules also propose that if an individual submits a claim for a condition that is not covered, and that condition later is added to the list, that individual may be eligible for payment. 

Will side effects from taking September 11th-related medications be covered by the VCF?

This may depend on the circumstances of your particular condition.  Although the rules for the VCF and the methodologies for determining awards are not yet final, the Zadroga Act provides for the VCF to base awards on the losses that each claimant has suffered as a direct result of September 11th.  Whether side effects arising out of medications taken to treat a covered condition are themselves directly related to September 11th will depend on the type of condition, the nature of the medication and the side effects, and other factors that may vary from individual to individual.

Cancer

Will cancer be covered by the VCF?

The Zadroga Act did not include cancer in its initial list of conditions that are related to September 11th.  The draft regulations provide that the VCF will consider modifications to the list of presumptively covered conditions based on the determinations of the World Trade Center (WTC) Health Program.  The VCF will examine the science to determine whether additional conditions (including specific types of cancer) can be covered.    The VCF’s draft rules also propose that if an individual submits a claim for a condition that is not covered, and that condition later is added to the list, that individual may be eligible for payment. 

PTSD and Emotional Harm

Will Post-traumatic stress disorder (PTSD) or emotional injuries be covered by the VCF?

 The Zadroga Act provides that only claimants who have a “physical injury” can be eligible for the VCF.  The regulations implementing the original VCF  interpreted that phrase to mean “a physical injury to the body,” thus excluding PTSD. 

In the Zadroga Act, Congress did not change the language defining the eligible injuries and thus did not change the the treatment of PTSD. The Zadroga Act treats PTSD as a mental or psychological condition, not a physical condition.  As a result, the VCF is not able to accept claims for PTSD.

For information about whether you may be eligible for treatment for mental or emotional harms by the World Trade Center Health Program, you may contact them directly by phone at 1-888-WTCHP4U (888-982-4748), or on the web at http://www.cdc.gov/niosh/wtc.

Multiple Conditions

If I have multiple conditions as a result of September 11th, will the VCF cover all of them?

As long as each condition was caused as a direct result of September 11th, the VCF will cover all of the conditions suffered by each eligible claimant.  However, the method for determining compensation will depend on proof of economic loss and a determination of non-economic loss.   The VCF will not provide multiple awards or awards for each condition. 

Funds and Awards

When will I receive my full award?

Under the proposed rules, once a claim is fully submitted and is determined to be substantially complete, the VCF will issue a determination on eligibility and, if appropriate, on compensation.  You will have the right to appeal the determination.  Once you have accepted the award or completed the appeal process, the VCF will issue a payment within 20 days of that date. 

These initial payments will not contain a claimant’s full award.  In order to ensure that there is enough money to make a payment to every claimant who is entitled to receive a payment, the Zadroga Act provides that the first payment to each claimant should contain a portion of the full award.  As a result, the size of that first payment will depend on the amount of the claimant’s full award, as well as the total number of claimants and the amount of money available.  The Zadroga Act provides that most of the available money will be distributed at the end of the program, so in most cases these initial payments will be significantly less than the full award.  Only $875 million will be available to pay claims in the VCF’s first five years.

The Act provides that the remainder of the award may be paid five years after the VCF opens.  Claimants can thus expect to receive the rest of their payment in 2016-17.  Depending on the number and type of claims, and in order to ensure that all eligible claimants receive an award, the Zadroga Act’s cap on funding means that it is possible that those payments will be pro-rated.

Because initial payments will reflect only a portion of the total payment that a claimant can expect to receive, the claimant may wish to consult with a financial planner regarding how to make best use of the payments as they are received.

Will there be a procedure for receiving early payments, or “advance benefits,” as they were known in the first VCF?

The Zadroga Act requires two rounds of payments:  an initial payment to each eligible claimant during the VCF’s first five years, after the claimant’s claim has been reviewed, followed by a second payment in the VCF’s sixth year.  Although the rules for the VCF are not yet final, VCF’s draft rules, which are available at www.justice.gov/vcf, propose to offer only these two payments, and not to add a third, early “advance” payment.  Adding a third round of payments will increase the VCF’s administrative costs, which will result in less money available for claimants.  Further, because the Zadroga Act already provides for two rounds of payments, a third round may be unnecessary.  (If you would like to submit a comment on the draft rules, you may find instructions on how to do so at www.justice.gov/vcf.)

What is economic loss? 

Economic loss is an estimate of the compensation that would have been available to the family if the tragedy had not occurred.  This includes, for example, loss of earnings, medical expense loss, or business opportunity losses.

What is non-economic loss? 

Non-economic losses include losses for physical and emotional pain or suffering, loss of enjoyment of life, mental anguish, and other non-pecuniary losses.

Will I be able to know approximately how much my award will be before I decide whether to submit a claim?

The proposed rules for computing economic loss are set forth in sections 104.41 through 104.47 of the proposed rules.  The VCF intends to provide guidance and illustrations to enable a claimant to evaluate his or her potential award before deciding to submit a claim.    That information will be posted on the VCF website, at www.justice.gov/vcf.

If my career is cut short as a result of a condition that is compensable under the VCF will my award take into account lost wages?

Yes.  The Zadroga Act provides for the VCF to take into account a claimant’s loss of earnings as a result of a physical injury caused by September 11th.

If my career is cut short as a result of a condition that is compensable under the VCF will my award take into account decreased pension benefits as a result of the shorter career?

Yes.  The Zadroga Act provides for the VCF to take into account a claimant’s loss of earnings and other benefits related to employment.

Will the amount of awards be the same as in the VCF’s first iteration, or will they be reduced?

The methodologies for computing economic loss will be based on those from the original VCF, with certain components of the economic loss computation updated.  The VCF will publish guidance on these computations.  The amount that each claimant will receive will depend on the amount of economic loss (if any), the non-economic loss, the offsets applied and the number of claimants and the aggregate amount of eligible awards.  In the Zadroga Act, Congress appropriated $2.775 billion to pay all of the awards, which means that the VCF cannot pay out any more than that amount.  This means that if the aggregate amount of awards and administrative costs exceeds this capped amount, the awards will have to be reduced.  The VCF cannot determine whether such a reduction will be necessary until it receives and evaluates all the claims. 

What is a collateral source?  How will the Special Master determine the amount of my collateral source benefits?

The Act defines collateral sources to mean all such sources, including life insurance, pension funds, death benefit programs and payments by Federal, State, or local governments related to the terrorist-related aircraft crashes of September 11, 2001 or debris removal, including under the World Trade Center Health Program and payments made pursuant to the settlement of a civil action for damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001 or debris removal. The Act and the draft regulations require the Special Master to reduce the total amount of compensation by the amount of the collateral source compensation the victim’s beneficiaries has received or is entitled to receive as a result of the terrorist-related aircraft crashes.

During the previous iteration of the Fund, Special Master exercised discretion in valuing the appropriate deductions for collateral offsets including by determining:

1. Whether the particular offsets fall within the definition of collateral sources;
2. Whether beneficiaries of the Fund are “entitled” to receive compensation from those collateral sources;
3. Whether the collateral source compensation is certain or can be computed with sufficient certainty to enable its deduction while ensuring that the beneficiaries receive the total compensation that is appropriate; and
4. The appropriate amount of the compensation that should be deducted, taking into account the time value of money and contributions made before death by the victim in the nature of investment or savings.

Under the proposed rules, the Special Master would be permitted to exercise discretion in a similar fashion.

Are charitable gifts offset? Will a benefit from a charity managed by a government agency be considered as a collateral offset?

The proposed rules adopt the approach taken previously, which is that benefits from charities disbursing private donations will not be treated as collateral source compensation, even if such charities were created or managed by government entities.

The British Broadcast Corporation (BBC),  a worldwide leader in television news reporting, visited our side of the pond last week to interview Turley Hansen Partner Troy Rosasco  at our office in The Woolworth Building in lower Manhattan for a documentary commemorating the 10th Anniversary of 9/11. 

Troy Rosasco answered questions about the new Zadroga 9/11 Act and re-opening of the 9/11 Victim Compensation Fund.  In addition, the BBC interviewed one of our clients about how his 9/11 related illnesses have changed his life over the last nearly 10 years. After leaving our office, they were off to interview Congressman Jerrold Nadler, Co-Sponsor of the Zadroga Act in the US House of Representatives.

The documentary special is being broadcast to coincide with the 10th Anniversary of 9/11, which is now less than 100 days away. In addition, it will be broadcast in podcast format on the BBC radio program "Crossing Continents". It was a pleasure working with Linda Sills and her entire BBC production team for this important documentary.

Last Saturday, Turley Hansen & Partners had a great turn out for our first of a series of Zadroga Act Informational Webinars. For those of you who could not attend, you can get our Zadroga 9/11 Act Information Powerpoint Presentation here.

Our cutting edge technology allows us to put on a live presentation for up to 1000 attendees interested in learning more about the new Zadroga Act.  Each attendee can ask questions either using a headset and built-in "Chat" software, or by a toll free 800 number.

Given the success of our first webinar, we will be presenting additional Zadroga Act webinars on more detailed issues in the near future.  We will announce upcoming webinar dates on this site. Stay tuned!

We are pleased to announce that Brian Mittman of Markhoff & Mittman, PC , Westchester's premier law firm for injured workers, has joined the Turley, Hansen & Partner's Zadroga legal team. Brian's law firm has been representing injured workers since 1933 - that's right - 1933, and is known for making some of the foundational law upon which all injured workers rely every day.

Brian will be able to do in-office consultations in his White Plains office for potential Zadroga Act claimant's living in the southern tier of New York, as well as northern New Jersey and Connecticut. In addition to Markhoff & Mittman's legendary status as "Deans of the Workers' Compensation Bar", Brian has brought cutting edge technology to his firm that permits him to handle Zadroga claims in the most timely and efficient manner possible. One look at the Markhoff & Mittman website and his informational posts on the Zadroga 9/11 Act  tell you his level of commitment to our cause.  Listen to Brian's interview with Zadroga Lawyer Troy Rosasco, Esq here.

As we all know, their is a growing problem of unfairly slow payments in 9/11 related claims, particularly by law firms that took on more clients than they could handle.  This has left 9/11 victims frustrated and perhaps victimized yet again.  Both Turley, Hansen & Partners and Markhoff & Mittman, PC are committed to the timely handling of all Zadroga Act Victim Compensation Fund claims, without sacrificing the quality of the legal representation.  

Please join us in welcoming Brian Mittman and Markhoff & Mittman, PC  to the Zadroga Claims Info legal team. Brian's legal skills will be an asset, and his location in White Plains will make it even easier for us to meet with clients living in and around that area.   

As reported in the New York Post today, our partner ( and fellow Zadroga lawyer) Chet Lukaszewski, has won a groundbreaking 9/11 World Trade Center pension case for the widow of a NYC firefighter.

In the first World Trade Center Appellate disability pension decision in favor of a first responder, the Appellate Division, Second Department, held that the New York City Fire Department Pension Fund Medical Board had provided an inadequate rationale several times in recommending denial of a petition for benefits brought by the widow of Lt. Cruz A. Fernandez in Matter of Fernandez v. Board of Trustees of N.Y. Fire Dept. Pension Fund, Subchapter 2 (App. Case# 2009-06506; Index#26232/08).

The Appellate Division overturned the denial by the FDNY Pension Fund of a petition for line of duty death benefits brought under the "World Trade Center Law", which had been previously upheld by the lower Court, and remanded the application for further consideration.  The application was brought by the widow of an FDNY Lieutenant who had run 9 marathons during his career, and spent hundreds of hours at the World Trade Center site, and retired in good health in 2002.

But soon after he began to suffer various health issues, and eventually died in July 2006 as a result of a complex cardiac event while playing in shallow water with his young nephew in full view of his family while on vacation.  The widow's  multiple medical experts found the decedent to have died as a result of his toxic 9/11 exposures, as evidenced by coal dust found throughout his body during an autopsy,  including his lungs, and other scientific indicators that demonstrated that his body, particularly his heart, had been weakened by the toxins, which lead to the cardiac event that caused his death.

The Pension Fund Medical Board found the death to simply be a drowning, which was adopted by the Fund’s Board of Trustees; and in Court the Pension Fund argued that even if the petitioner was caused to drown by a cardiac event, it was a standard heart attack, with no WTC exposure connection.  The widow argued the black coal dust in the decedent’s body and lungs, known as anthracosis (coal miners’ disease), which was the primary factor in his death, was both a “disease of the lower respiratory tract” as well as “heavy metal poisoning”, which are both “qualifying conditions” under the under the WTC Law, and thus the death was WTC related.  

The Court held in reversing the lower Court and the Fund: "Although the Board of Trustees [of the pension fund] is entitled to rely on the report and recommendation of the Medical Board, the proceedings should disclose the reason for the denial, and the determination must be set forth in such manner as to permit adequate judicial review… Under the circumstances of this case, the explanation by the Medical Board was insufficient." The Court ordered that the Pension Fund Trustees to send the case back to its Medical Board to specifically address medical evidence indicating that Mr. Fernandez's drowning was precipitated by his heart condition, which was the result of respiratory distress caused by responding to the 9/11 attacks.

This widow was lucky to have our partner (and fellow Zadroga 9/11 attorney) Chet Lukaszewski as her disability pension lawyer.  Now lets hope the Medical Board finally does the 'right thing'.

 

Are downtown Manhattan residents who were exposed to toxic dust as a result of the 9/11 attacks and clean up eligible for a Victims' Compensation Fund (VCF) Award under the new Zadroga 9/11 Act?

The answer is YES, according to Congressman Jerrold Nadler, Co-Author of the James Zadroga 9/11 Health and Compensation Act of 2010.

As reported in The Tribeca Trib, there was confusion regarding Zadroga 9/11 Act eligibility for downtown Manhattan residents.  Congressman Nadler, co-author of the Zadroga Act, issued a statement clearly stating that downtown residents, who were not first responders, were also eligible foe a monetary award under the Victim Compensation Fund.

In fact, the World Trade Center 9/11 Crash site, which in part determines eligibility for downtown residents by extending the "WTC Crash Site", has been expanded.  The new definition of the World Trade Center Crash Site has been expanded in the Zadroga 9/11 Act:

(14) 9/11 CRASH SITE- The term `9/11 crash site' means--

(A) the World Trade Center site, Pentagon site, and Shanksville, Pennsylvania site;

(B) the buildings or portions of buildings that were destroyed as a result of the terrorist-related aircraftcrashes of September 11, 2001;

(C) any area contiguous to a site of such crashes that the Special Master determines was sufficientlyclose to the site that there was a demonstrable risk of physical harm resulting from the impact of theaircraft or any subsequent fire, explosions, or building collapses (including the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured individuals);

and

(D) any area related to, or along, routes of debris removal, such as barges and Fresh Kills.'.

The Bottom Line - if you were a downtown Manhattan resident and you suffered injuries or illness related to the 9/11 crash or clean-up, you may be eligible for both health care benefits and a monetary award from the VCF as a result of the new Zadroga 9/11 Act.

If you have questions on potential eligibility, call Troy Rosasco toll free at 1-855-WTC-INFO x123. 

The New York Daily News reports that  9/11 First Responders could face a four month treatment gap because Congress never officially passed this year's budget.  A passed budget would have given the  WTC Medical Monitoring and Treatment Program  $150 million. 

The Daily News reports that “lawmakers punted repeatedly, passing stop-gap "continuing resolutions" that "fund programs at last year's levels”, and that “the last temporary funding measure passed before Christmas, and runs out March 4."

Workers and others injured in the attacks do have other benefits coming under the $4.3 billion James Zadroga Health and Compensation Act, but the new World Trade Center Benefits and the World Trade Center Compensation Fund does not become effective until this July.

According to the Daily News, the Zadroga Victim’s Compensation Fund’s sponsor, Rep. Carolyn Maloney (D-Manhattan) and Sen. Kirsten Gillibrand, vowed to find a fix for the gap in funding for the approximate 60,000 people who are enrolled in various World Trade Center health and monitoring programs.  Let's hope they can pull off another miracle!

 

 

The newly re-opened 9/11 Victims Compensation Fund in the Zadroga 9/11 Act provides for a monetary award to a wide range of individuals involved in the rescue, clean-up, and repair efforts.  Individuals eligible for compensation may include: 

• All first responders such as firefighters, police officers, and other municipal workers.
• All construction workers.
• All clean-up workers.
• All sanitation workers.
• All workers and volunteers who participated in the World Trade Center rescue and recovery efforts.
• All workers and volunteers who participated in the removal of debris.
• All workers and volunteers who participated in the clean-up of any damage from the September 11^th attacks.
• All workers and volunteers who participated in the remediation (demolition, construction, repairs, etc.) of any damage from the September 11^th attacks.  

The Victim Compensation Fund may provide for monetary compensation to all workers and volunteers who were at the following locations, including: 

• World Trade Center buildings and nearby structures.
• Buildings and areas next to the World Trade Center.
• Buildings and areas damaged as the result of the impact of the aircraft or any subsequent fire, explosions, or building collapses (including the immediate area in which the impact occurred, fire occurred, portions of buildings fell, or debris fell upon and injured individuals).
• Any are along the route of debris removal including Fresh Kills
• Any area the Special Master determines was sufficiently close to the site to cause harm